Citation Nr: 0002162 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-22 601 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a back/spine condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from October 1975 to December 1975. This matter came before the Board on appeal from a September 1996 rating determination by the RO. Following a travel board hearing in Albuquerque, New Mexico in October 1997, the case was remanded by the Board for additional development in March 1998. The case has been returned to the Board for further appellate review at this time. FINDING OF FACT The claim for service connection for a back/spine condition is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for a back/spine condition is not well grounded. 38 U.S.C.A. § 5107. (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background. Service medical records show that shortly after entering service the veteran complained of shoulder and neck pain and underwent evaluation for same. During said evaluation, an x-ray study revealed an unrelated Grade I spondylolisthesis of the lower back at L5-S1. The veteran underwent evaluation and in December 1975 a military physician found that the veteran had a congenital condition that had not been aggravated by service. At medical board proceedings later that month, three military physicians found that the veteran was medically unfit for enlistment due to his preexisting spondylolysis with spondylolisthesis, L5-S1, Grade I. The medical board members further specified that the veteran's low back condition had existed prior to service, that it was not caused by any incident of service, and that it had not been aggravated by service. Later that same month, the veteran was discharged from service due to the preexisting low back condition. The veteran filed his initial claim for service connection for a back/spine disability in January 1996. Post service medical records are negative as to the presence of any increase in the veteran's low back condition until the 1990's, many years, post-service. While the veteran reported treatment by private physicians in 1990, attempts to obtain these records were unsuccessful. VA outpatient treatment records from January and February 1996 show the veteran complained of sustaining a back injury in service as a result of a fall and of having back problems since that time. Orthopedic examination in February 1996 reflects that the veteran reported low back pain for 20 years which had increased in severity during the last year. Pertinent diagnosis at that time was Grade II spondylolisthesis with low back pain. A statement from the veteran's mother, dated in April 1996, was to the effect that to the best of her knowledge, the veteran had had no back injuries prior to service. In his substantive appeal of June 1997, the veteran indicated that the only time he had problems with his back was in service and since that time it had worsened. At the hearing on appeal before the undersigned in October 1997, the veteran reiterated his contention that he suffered a back injury in service. He also presented testimony that records were available at a private medical facility that could establish that he had no treatment for back problems before service, but had received continuing treatment at that facility for such problems since service. Following the Board remand in March 1998, the veteran was asked by the RO to provide additional information so that the medical records he had referred to at the hearing could be obtained. In September 1999, the veteran furnished copies of medical records from that facility. The records submitted only showed treatment of the veteran in 1986 and 1990 for unrelated illnesses. No materials related to the veteran's low back treatment were obtained. The veteran indicated that he was advised by the facility that all of his other records had been destroyed. Criteria. As to an initial claim, under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a service-connection claim is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is generally required for the claim to be well grounded. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied, U.S. , 118 S. Ct. 2348 (1998); Heuer and Grottveit, both supra. Alternatively, the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established under § 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period and (2) present disability from it. See Savage, supra. Service connection may be granted for disability incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Every veteran is presumed to have been in sound condition when enrolled in service, with the exception of disorders noted at induction "or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service." 38 U.S.C.A. § 1111 (West 1991). When a preexisting injury or disease undergoes an increase during service, it will be presumed to have been aggravated in service. This presumption of aggravation can only be rebutted through submission of clear and unmistakable evidence. 38 C.F.R. § 3.306(a). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation." 38 C.F.R. §§ 3.303(c) and 4.9. Analysis. The veteran has claimed service connection for a back/spine disorder based on incurrence in or aggravation by service. His principal contention is that the currently claimed disability is the result of a back injury he sustained during service. The veteran has presented testimony that he had no back problems prior to service, that he suffered a back injury from a fall while in service, and that he has had back pain thereafter. While no such back injury is reflected in the service medical records, the service medical records show that the veteran was evaluated and found to be medically unfit for enlistment due to a preexisting spondylolysis with spondylolisthesis, L5-S1, Grade I. In January 1996, 20 years after his release from service, he was diagnosed with Grade II spondylolisthesis. Compensation is payable for disability resulting from injury or disease contracted in the line of duty, or for in-service aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110, 1131. However, 38 C.F.R. § 3.303(c) excludes congenital defects from such consideration: "congenital or developmental defects, . . . are not diseases or injuries within the meaning of applicable legislation." General Counsel for VA, in a precedent opinion binding on VA, addressed the apparent contradiction between the above statutes and regulation. The opinion reasons that the term "disease" in 38 U.S.C.A. §§ 1110 and 1131 and the term "defect" in 38 C.F.R. § 3.303(c) are mutually exclusive, and concludes that service connection may be granted for diseases, but not defects, of a congenital, developmental, or familial origin. VAOPGCPREC 82-90 (O.G.C. Prec. Prec. 82-90) (July 18, 1990) (originally issued as O.G.C. Prec. 1-85 (Mar. 5, 1985)). It is clear that congenital or developmental defects may not be service-connected because they are not diseases or injuries under the law. However, many such defects can be subject to superimposed disease or injury. If during an individual's military service, superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability. VAOPGCPREC 82-90. No such superimposed disability, i.e., a low back disability in addition to spondylolisthesis, has been shown in this case. Accordingly, the primary issue here is whether the appellant's spondylolysis with spondylolisthesis is a disease or a defect. In VAOPGCPREC 82-90, General Counsel noted that a Federal Court referred to a disease as a condition capable of improving or deteriorating, whereas a defect was a condition not capable of improving or deteriorating. As noted above, the veteran's spondylolisthesis was classified as Grade 1 when he was in service in 1975, but that it was classified as Grade 2 when he was examined in 1996. Apparently, this condition is capable of improving or deteriorating. Accordingly, the Board will consider this condition as a disease. The General Counsel opinion advised that when a disease is of a congenital nature, VA adjudicators are justified in finding that such disease preexisted service, but that in cases where the disease is first manifest in service, guidance from medical authorities may be necessary regarding the actual time of inception. Thus, the Board's next step is to consider whether the disease had its inception in service. Since no low back disorder was noted during the appellant's entry examination, and since the Board has determined that the veteran's low back conditions is a disease rather than a defect, the appellant is entitled to the statutory presumption of sound condition. Implicit in this determination is a conclusion that spondylolisthesis is a ratable disability since it would make no sense to invoke the presumption unless the condition involved would be a ratable disability. Therefore, in order for the Board to conclude that the spondylolisthesis existed prior to service, the record must contain clear and unmistakable evidence that the appellant's spondylolisthesis pre-existed service. The only competent evidence regarding this matter are the opinions of the physicians who examined the veteran during service. The physicians who evaluated the veteran during service were unanimous in concluding that the spondylolysis with spondylolisthesis existed prior to his enlistment and was not due to any incident of service. The Board finds that the opinions of the service physicians constitutes clear and unmistakable evidence that the veteran's spondylolisthesis existed prior to service. Thus, entitlement to service connection for spondylolisthesis in this case turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. The provisions of 38 C.F.R. § 3.306(a) provide that when a preexisting injury or disease undergoes an increase during service, it will be presumed to have been aggravated in service. This presumption of aggravation can only be rebutted through submission of clear and unmistakable evidence. 38 C.F.R. § 3.306(a). There is no competent medical evidence in service or after service showing that the veteran's preexisting low back condition underwent an increase in severity during service. The Court has held that "[t]emporary or intermittent [in- service] flare-ups" of a pre-service condition, without evidence of worsening of the underlying condition (as contrasted to symptoms), "are not sufficient to be considered 'aggravation in service'". Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991) (finding that, although there was temporary worsening of symptoms, the condition itself, which lent itself to flare-ups, did not worsen, and that the disability remained unaffected by the flare-ups). The physicians who examined the veteran during service specifically held that the low back disorder was not aggravated by his active military service. Significantly, post-service medical records are negative for mention of a low back condition until 1996, when a Grade II spondylolisthesis was diagnosed. The only positive evidence of record supporting the veteran's claim are his own statements and testimony with respect to an increase in back symptoms during service and thereafter. However, the Board holds that the veteran's statements and testimony with respect to such an increase in disability are not probative as the veteran is a layman and not competent to provide a medical opinion necessary to establish an increase in underlying disability as opposed to simply a worsening of symptoms. See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's testimony cannot supply the needed medical evidence that his condition worsened during service or the etiological link between his current condition and his military service. See Caluza, supra; Magana v. Brown, 7 Vet. App. 224, 227-28 (1994); Moray v. Brown, 5 Vet. App. 211, 214 (1993). Lay assertions of medical causation or of aggravation of a preexisting condition cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. See Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995); see also Moray, supra. Although the veteran is capable of providing evidence as to his fall in service, as a layperson he is generally not competent to opine on matters requiring medical knowledge, such as whether a fall aggravated his back condition. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995). The veteran has furnished no competent medical evidence suggesting an increase in the underlying spondylolisthesis during service, nor is such otherwise of record. In fact, the evidentiary record definitively shows by competent medical evidence that the veteran had a pre-service condition that was not aggravated by his brief period of service. In the instant matter, the veteran presented evidence that he currently suffers from the same low back disorder which was identified in service. He has thus satisfied the first prong for a well-grounded service-connection claim as set forth in Caluza, supra. However, while the veteran has presented testimony that he suffered a back injury from a fall while in service and that he has experienced back pain continuously thereafter, he has presented no competent evidence of in- service aggravation of the pre-existing spondylolisthesis. Thus, he has not satisfied the second prong for a well- grounded claim. Likewise, the record does not contain any medical nexus evidence linking any in-service back injury to his spondylolisthesis. The earliest clinical evidence of complaints of and treatment for a back disability subsequent to active service dates from 1996, 20 years after his release from service. The record is devoid of any competent evidence suggesting that the veteran's spondylolisthesis underwent an increase in severity during service. Because this question of increase in severity of the underlying spondylolisthesis requires competent medical evidence, which the veteran, as a lay person, is not qualified to offer, he has also failed to satisfy the third prong set forth in Caluza, supra, for a well-grounded service-connection claim. Accordingly, the question becomes whether there is evidence to warrant a conclusion that the claim is well grounded based upon the application of 38 C.F.R. § 3.303(b). As Savage makes clear, § 3.303(b) contemplates two paths by which that regulation could apply to a claim: (1) By a showing of a "chronic disease shown as such in service" and present disability from the same condition or (2) by a showing of continuity of symptomatology as to an injury or disease. Savage, 10 Vet. App. at 495-96. With regard to a showing of a chronic disease in service, the Board has already concluded that a chronic disorder was noted during service and that this chronic disorder pre-existed his entrance into service. Accordingly, his claim can not be well grounded under section 3.303(b) by following the first path set forth in Savage. See 38 U.S.C. § 3.303(b); Savage, supra. In considering the second path set forth in Savage, the veteran has asserted that he has experienced back pain continuously from the time of his injury in service, thereby invoking the possibility of a showing of continuity of symptomatology under 38 C.F.R. § 3.303(b). See Savage, 10 Vet. App. at 496-97. The Board, in remanding the case, indicated that such a showing might make the claim well grounded inasmuch as such a showing might indicate a permanent increase in severity of the underlying spondylolisthesis. No medical evidence was obtained which would tend to support the veteran's claim of continuity of symptomatology or which would indicate an increase in severity of the spondylolisthesis in service or shortly after service. Treatment for low back complaints was not shown until 1996, 20 years after service discharge. The Board also notes that while some of the recent medical records contain a history dating the veteran's problems back to service, this is not probative as this information was furnished to the physicians by the veteran and is not supported by any clinical evidence of record. Black v. Brown, 5 Vet. App. 177 (1993). Here, continuity of symptomatology cannot be used to well ground the claim because the record does not contain medical evidence linking the asserted post-service back pain symptomatology to the current diagnosis of spondylolisthesis. Therefore, the Board holds that the absence of competent medical evidence tending to show an increase in severity of the veteran's congenital back disorder during service renders his claim for service connection for spondylolisthesis is not well grounded. Although the Board considered and denied veteran's claim on a ground different from that of the RO, the veteran has not been prejudiced by the decision. This is because in assuming the claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the appellant's failure to meet the initial burden of the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground his claims. McKnight v. Gober, 131 F.3d 1483 (Fed.Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). ORDER The veteran not having submitted a well-grounded claim of entitlement to service connection for a back/spine condition, the appeal is denied. Gary L. Gick Member, Board of Veterans' Appeals